| Escobar v Velez |
| 2014 NY Slip Op 02409 [116 AD3d 735] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Armando Escobar, Respondent, v Julian Velez etal., Appellants. |
—[*1] Stefanidis & Mironis, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York,N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Queens County (McDonald, J.), entered April 30, 2013,which granted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
The plaintiff allegedly was injured while riding a motorized bicycle in Astoria,Queens, when the bicycle came into contact with a truck owned by the defendant USATrucking, Inc., and operated by the defendant Julian Velez. The plaintiff alleges that bothvehicles were waiting at a red traffic light prior to the collision, with the truck to the leftof the bicycle. Velez testified at his deposition that it was raining and that he was stoppedat the red light for approximately one minute waiting for it to turn to green, and hademployed his right-turn signal before he had reached the intersection. The plaintifftestified at his deposition that he had been stopped for only approximately 30-40 secondsat the same traffic light. When the light turned to green, the plaintiff proceeded straightahead through the intersection while Velez attempted to make a right turn, colliding withthe plaintiff. The plaintiff commenced this action against the defendants to recoverdamages for personal injuries. The plaintiff moved for summary judgment on the issue ofliability. The Supreme Court granted the plaintiff's motion.
In determining a motion for summary judgment, evidence must be viewed in the lightmost favorable to the nonmoving party, and all reasonable inferences must be resolved infavor of the nonmoving party (see Bravo v Vargas, 113 AD3d 579 [2014]; Green v Quincy Amusements,Inc., 108 AD3d 591, 592 [2013]; Stukas v Streiter, 83 AD3d 18 [2011]). "The function ofthe court on a motion for summary judgment is not to resolve issues of fact or determinematters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 AD3d493, 493 [2005]; seeGuadalupe v New York City Tr. Auth., 91 AD3d 716 [2012]).[*2]
To establish prima facie entitlement to judgmentas a matter of law on the issue of liability, a plaintiff must demonstrate that the defendantwas negligent and that the plaintiff was free of comparative fault (see Singh v Thomas, 113AD3d 748 [2014]). In support of his motion, the plaintiff submitted, among otherthings, the transcript of his deposition, at which, although the plaintiff testified that hedid not see Velez's turn signal on, he also admitted that, during the 30-40 seconds he waswaiting for the light to turn, his head was focused toward the traffic light only. Therefore,the plaintiff failed to eliminate a triable issue of fact as to whether or not Velez hademployed his turn signal well before reaching the intersection and whether Velez reachedthe intersection well before the plaintiff, thereby putting the plaintiff on notice thatVelez, who was operating a truck, intended to turn right (see Vehicle and TrafficLaw § 1146; Palma vSherman, 55 AD3d 891, 891 [2008]). Accordingly, the Supreme Court shouldhave denied the plaintiff's motion for summary judgment on the issue of liability, withoutregard to the sufficiency of the defendants' opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Lott, Roman andCohen, JJ., concur. [Prior Case History: 2013 NY Slip Op 30940(U).]